Andrew R. Varcoe of Boyden Gray & Associates.
Andrew R. Varcoe of Boyden Gray & Associates. (Courtesy photo)

Does the U.S. Constitution guarantee a right to be secure against climate change? And do the President and his officers have a legal duty—enforceable by a federal district judge—to pursue and implement an effective strategy to fight climate change?

These, to say the least, are cutting-edge questions. And the Ninth Circuit—which remains one of the most important environmental-law courts in the country—may be deciding them very soon.

On June 9, the Department of Justice filed a rare mandamus petition with the Ninth Circuit in Juliana v. United States, a suit pending in federal district court in Oregon. In Juliana, the plaintiffs have sued the President, the Secretary of State, the Secretary of Defense, other Executive Branch officials, and their agencies. The plaintiffs argue that they have a substantive due process right to a viable climate system (and related equal protection and unenumerated Ninth Amendment rights). They also argue that the defendants have a federally enforceable public trust duty to protect the atmosphere and other resources.

Among other relief, the plaintiffs seek an order compelling the defendants to prepare and implement an enforceable national remedial plan to phase out fossil fuel emissions and to draw down excess atmospheric carbon dioxide to stabilize the climate system. The plaintiffs also ask the court to retain jurisdiction “to monitor and enforce” the defendants’ compliance with the remedial plan.

Most of the plaintiffs are children and young people. There’s also Earth Guardians, a nonprofit group. The most unusual plaintiff is “Future Generations, by and through their Guardian Dr. James Hansen,” the climate scientist and advocate.

The government filed its mandamus petition—and a request to stay the district court proceedings—the day after receiving a decision from U.S. District Judge Ann Aiken declining to certify an interlocutory appeal in the case. In a previous decision denying motions to dismiss, Judge Aiken had concluded that the Constitution guarantees an “unenumerated fundamental right” to “a climate system capable of sustaining human life.” She’d also concluded that the plaintiffs had adequately alleged a public trust claim.

The government now asks the court of appeals to direct the district court to dismiss the case. The government argues that the plaintiffs have not alleged the required elements of standing (injury-in-fact, causation, and redressability) under Article III of the Constitution; that there is no due process right to a particular climate system; and that there is no actionable public trust claim against the federal government.

Yale law professor Douglas Kysar notes that Juliana “might well be the most important lawsuit on the planet right now.” More surprisingly, he contends that “[f]or the Trump Justice Department to even seek a writ of mandamus in the current context is offensive to Judge Aiken, to the entire federal judiciary, and, indeed, to the rule of law itself,” and that “we should all question why the Trump Administration’s lawyers are willing to try such a trick rather than forthrightly defend the case.”

These assertions are hard to reconcile with the notion that the suit is path-breaking and important to the planet. They’re also unfair. As is usual in these situations, the DOJ lawyers who filed the mandamus petition (some of whom are known personally to this author) are a mix of political appointees and career government lawyers who have litigated in the federal courts of appeals for decades. Whatever their personal views on climate change issues, these seasoned lawyers have the task of defending all manner of suits against the United States with vigor, zeal, and skill. For that, our government’s lawyers are to be commended, whatever one thinks about the right policy choices to be made in this very important area.

Seeking mandamus in a case like Juliana is eminently defensible. The government’s arguments—the same basic arguments that the previous Administration made in the district court—are more than sound. When a panel of Ninth Circuit judges rules on the mandamus petition, those judges will be constrained by black-letter law on justiciability, substantive due process, and the public trust doctrine. The case law on these topics does not augur well for the fate of what is, in the end, a highly unconventional lawsuit. The D.C. Circuit, for example, dismissed a very similar suit in 2014. (That suit was based solely on a public-trust theory; the plaintiffs didn’t even try to assert a separate constitutional claim in the case.)

Interestingly, despite the change in Administrations, the government’s mandamus petition doesn’t rely on the political question doctrine, a basis for dismissal that industry intervenors raised in the district court. In a sense, it doesn’t matter: the Ninth Circuit held in 2007 that the presence of a political question deprives a federal court of subject matter jurisdiction. The issue thus can’t be waived by the parties. It’s at least possible that the court will order the parties, or invite amici, to brief the issue.

The Supreme Court’s decision in Baker v. Carr (1962) famously enumerates six tests for determining the presence of a non-justiciable political question in a lawsuit:

Prominent on the surface of any case held to involve a political question is found [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Each of the well-known Baker factors constitutes an independent basis for dismissal. In the Juliana case, a number of the six factors are strongly implicated.

For example, it is very difficult to imagine how a federal court could provide effective and judicially manageable relief for climate change (utilizing “judicially discoverable and manageable standards”) that would not impinge on the President’s exercise of his Article II foreign affairs powers—powers that are “commit[ted]” to “a coordinate political department” of the federal government. Climate change and greenhouse gas emissions are global phenomena that cannot be addressed without coordinated, multilateral responses. Unilateral efforts could be ineffectual—or worse, if they have the effect of shifting polluting activities to jurisdictions with weaker environmental controls.

But U.S. courts aren’t equipped to provide multilateral solutions to global problems. U.S. courts can’t command foreign powers to reduce their emissions, or require the President and the Secretary of State to give priority to fighting climate change.

Nor can U.S. courts force the President and the Senate to enter into international agreements to fight climate change. President Trump’s recent decision to withdraw from the Paris agreement was highly controversial. What isn’t controversial is that the President had the constitutional power to make that decision—and that the President’s successor will have the power to reverse it.

The plaintiffs protest that they are not seeking any specific relief that would determine national policy or usurp congressional or presidential powers. They say that they are simply seeking “an order directing Defendants to desist from and remedy the violations of their rights.” That doesn’t make sense. Court orders, which are enforceable by contempt, have to be specific enough to provide meaningful guidance to the parties on which they operate. If the plaintiffs are actually seeking remedies that are too vague to provide them meaningful relief, then they lack Article III standing.

It’s not a stretch to think that the Juliana case may be headed for dismissal before too long. Indeed, in one posture or another, the case just might find itself in the Supreme Court. In part, that’s because the policy problems presented in the case are so important. It’s also because the quest for a judicial solution to those problems poses fundamental challenges to the separation of powers in our democracy.